Monkey Selfie Back In The News: Photographer Threatens Copyright Experts With His Confused Understanding Of Copyright

from the want-to-try-that-again dept

Oh boy. The "Monkey Selfie" is back.

Yes, that picture that we first wrote about three and a half years ago, including a detailed analysis of why the picture is almost certainly in the public domain, is still creating a stir. It got some attention again a few months ago when some new news reports falsely argued that people were saying the monkey held the copyright. However, we noted that the photographer whose camera was used, David Slater, was still claiming that the copyright was his. A day later, we wrote about a great writeup by Sherwin Siy, Public Knowledge's VP of legal affairs (and a copyright expert), discussing the weird belief some have that someone must own the copyright on everything.

For reasons unknown, earlier this week, Slater suddenly decided to send Siy and Public Knowledge an ill-informed, poorly reasoned legal threat about that post. The letter Slater sends is fairly incredible, both in its reasoning and in its target. Not only do the claims in the letter misrepresent the law, but they misrepresent Siy's post and the use of the image. Here is Slater's letter:

I am writing to inform you that I have read your blog post authored by Sherwin Siy:
https://www.publicknowledge.org/news-blog/blogs/nobody-cant-hold-a-copyright-which-means-sometimes-nobody-holds-a-copyright

It is factually incorrect and damaging to me. It encourages the public to infringe my copyright of the monkey images. The text, in my opinion, is willfully damaging and disrespectful to me. This accords with your mission statement.

The exclusion of any proper accreditation to the image, or even mention of my name in relation to the image, infringes upon my moral rights to the image and is contrary to any Fair Use dealing. Furthermore, it affects the commercial value of the image to me. It is also being used to benefit Public Knowledge and your mission at the expense of my own. This is contrary to fair use and also your mission which claims to uphold the fair use doctrine.

The article is unbalanced and unfair and is infringing my publicity rights and rights to commercialize the image/s.

I do not believe you made any attempt to contact me, preferring instead to cherry pick sources that you know to be biased and encouraging theft of my images and destruction of my reputation and personality rights.

The image is registered with the USCO and is a part of a registered Image Rights under Guernsey Ordinance 2012.

Your site acknowledges it's core mission is to protect fair use and the public domain. Your site, in my opinion, is abusing fair use and damaging the concept of public domain.

A public domain image is one in which a living author has voluntarily relinquished rights to the image. Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain.

Public Knowledge nor Sherwin Siy nor Wikimedia have the right to decide. Any action attempting to wilfully infringe copyright to make a claim for public domain, including textual references that encourage others to infringe, shall be liable for prosecution under the legal jurisdiction of my choice.

Public domain is NOT a place such as Wikimedia's Creative Commons or the internet.

You have cherry picked sources of information from Buzzfeed, Techdirt and the 1709blog, that simply agree with your mission to remove property rights from professional artists like myself using ridicule, poorly sourced material and unfounded reasoning.
In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning. Note that Wikipedia states the author of the images is the monkey itself, with blatant removal of the true author's copyright watermarks. Authors are entitled to copyright.

I wish to see any evidence you have of any license you have purchased for the use of my image.

If you have purchased a license I will still require some amendment to the article.

I am willing to overlook your infringement if you rectify the article with another article that reports the facts of the story. I will work with you to do this and you will grant me the ability to comment on the article in draft form prior to publication. Publication should be within the calendar month of this e-mail.

I will await your acceptance for 24 hours in which to agree to rewrite the article. I will take your absence of any reply and acceptance of my terms as your acceptance of guilt and will forward your details to my lawyers in the US and UK..

Thank you for your email of December 10, regarding my August 6th blog post about the macaque photos taken with your camera.

To be brief, we have not purchased any license for the use of the photograph, and do not plan on doing so. We will also not be removing or substantively amending the post. We do not have any plans to allow you to publish your thoughts on this matter on our website. We may be commenting upon this matter, including this correspondence, on the site in the near future.

As you can tell from the post, I do not believe that you hold a valid copyright in that particular image. This allows us to reproduce the image without first seeking your permission, or listing you as a contributing factor to its creation.

You say that the photo has been registered with the “USCO;” I take this to mean the United States Copyright Office. In August, not long after I published my blog post, the Copyright Office issued an updated draft of its Compendium of Copyright Practices (http://copyright.gov/comp3/docs/compendium-full.pdf), the manual for its internal practices, including registration. Of particular note is its commentary on the “human authorship” requirement in section 306 (page 54 of the linked .pdf), which says that the Office will refuse to register a claim of copyright if a human being did not create the work. Lest you think I am stretching their point, their first specific examples of a non-human authored work (among other examples such as elephant murals, wave-shaped driftwood, or the natural appearance of animal skin) is

· A photograph taken by a monkey.

Even beyond the question of whether you have a valid copyright in that image is my, and my employer’s, exercise of our fair use rights. You will note that our use of the photograph was in the context of discussing that photograph. News reporting, commentary, and criticism are all quintessential examples of fair use, and this clearly falls within them. Whether or not our use of the image “benefits our mission” is largely irrelevant to that determination, too. If uses of copyrighted works were only fair when they were useless to the user, it would be a singularly useless doctrine.

You say

A public domain image is one in which a living author has voluntarily relinquished rights to the image. Any debate claiming acts of nature were resonsible for the image MUST be resolved in a court, and only AFTER judgement shall an image be qualified as public domain.

This is not true. It would be absurd for every instance of the use of public domain works to be litigated. The fact that certain works have no copyright holder (because the term of copyright has expired, because the work is not the creation of a human author, or because the work was not sufficiently fixed or sufficiently creative) means that there would be no one to definitively contest the usage in court. Publishers reprinting copies of The Murders in the Rue Morgue should not, and need not, wait for a court to grant them permission; users of creative works authored by the federal government of the United States do not have to go to court for permission each time they wish to use those images. If a particular person believes that a work is not in the public domain and that their rights have been infringed by a use, they are, of course, free to raise that question in court.

You also say this:

In so far as your contributor's claim that it is myself who claims Wikipedia is the source of the monkey owning copyright, please state your reasoning.

I confess to being a bit confused by this; I presume this comes from my statement in the blog post that

Basically, there’s a bit of a red herring going around, saying that Wikimedia claims that the monkey owns the copyright.

For the simple sake of avoiding any further confusion, let me clarify this by saying that I simply meant that a number of commentators (not you) were incorrectly following a tempting possibility that the monkey might hold a copyright. I certainly did not intend to imply that you were one of those commentators, or a red herring.

Having dealt with the legal questions, I would also like to discuss some of your other, non-legal complaints. You say that my blog post was “willfully damaging and disrespectful” to you. It was not. While we clearly disagree on the scope and applicability of the law, I never insulted you or mocked you. You might note that, at the bottom of the post, I, in the interest of being even-handed, even say you have a “colorable” argument for copyrightability—more credit than many of my learned colleagues have given you. The point of the post was to articulate a legal distinction that many missed—that the question was not whether or not a macaque could hold a copyright, but whether or not you could have a photograph in which no one held a copyright. Your actions and character were not disparaged, or even mentioned, because they were not relevant to that discussion.

I will note, however, that whether I was disrespectful or not has no bearing on any legal matters at hand here. While I believe I was more than fair in my treatment of your reputation in that post, I did then, and do now, have every right in the world to be disrespectful of you in public.

I hope that this letter resolves any dispute we might have. If it does not, we may be reached for service of process at the mailing address below. I eagerly await your reply.

Siy's response, of course, covers all of the important stuff. However, I wanted to further comment on Slater's troubling belief that the public domain only applies to works that someone has proactively relinquished into the public domain. This goes right back to the point of Siy's original article: the troubling belief by some that everything must be owned in some form or another. This implicit belief is not only not the law, but it's immensely problematic. Culture works by openness and sharing. The history of culture is one in which people reused, reshared and remixed the works of others. The massive increase in locking down works via copyright laws has certainly limited that ability over the past hundred years or so, but it has not taken away the concept of the public domain entirely, as Slater seems to believe.

Slater can't seem to fathom that the photograph doesn't belong to him, no matter how many legal experts have explained it to him. Even worse, he can't seem to fathom that things like the public domain and fair use are not only important, but are also part of what's made him be able to do what he does. Those who dismiss or misunderstand things like fair use and the public domain are ignoring the cultural body of work that made them who they are today.

Re:

Forced obtuseness?

I have to wonder if he's being intentionally clueless as regards to the law.

It wouldn't surprise me after all if he'd managed to get at least some people to pay up for a 'license' by throwing random legal words at them as a scare tactic(as he seemed to be doing here), and suggesting that they had to pay him, and if at any time in the future he admits that no, in fact people don't need to pay him, because the picture isn't his, I don't think it would be long until he found himself with some rather angry people threatening legal actions for his trickery and lies in the past.

Re: Forced obtuseness?

His argument is basically, "My camera, my pic, whoever took it."

This means that if I obtained his permission to borrow his camera, then took a picture and entered it into some kind of contest or wanted to sell it, he would claim the copyright on it, along with any monies due.

Don't get me started on how wrong that is. As Violynne says, he's got a giant sense of entitlemnt and that is the root of the problem.

"...the troubling belief by some that everything must be owned in some form or another."

The imposition of property rights onto monopoly privileges has got to be the biggest con job in history. That so many of us have fallen for it can only make things worse. Thank God for those people who take the time to educate people and tell them the truth: it's not property. It's a monopoly, and was only ever meant to be temporary.

ILCP sadly supports Slater

As someone who is passionate about (and in fact works in the field of) wildlife conservation, it saddens me to see the International League of Conservation Photographers (ILCP) they support Slater in his misguided campaign to assert copyright where none exists.

That particular document is of interest to me because it raises the issue of camera traps: weatherproof digital cameras placed outdoors where a motion detector triggers the camera to record a picture or video. One could argue that—while a human is going through all of the set up—the actual photo was triggered by the motion detector. Therefore there is no human authorship.

Yet there are currently camera trap photography contests—such as this one sponsored by the BBC—where a requirement of submission is “The photos must have been taken in the past three years and be your own original work. You—or your organisation—must be the owner of the copyright of all photos entered.”

These traps are becoming more common and the quality of the photos is getting better and better to the point where this ambiguous legal issue will ultimately be decided in court.

Re: Re: ILCP sadly supports Slater

It actually is ambiguous to some degree... what do you consider to be "taking the photo?" In the case of camera traps, people set the frame and described the conditions for focus and exposure, and also created the rules under which the curtain would raise and lower. This was all done by individuals, with the intent of taking a photo of a moving object in that field of view. If you say it's clear that they didn't take the photo, what do you consider to be "taking a photo?" I have taken many photos by pressing a button that revealed captured images different from what I intended to capture after the fact. Does the fact that I didn't intend to capture that exact photo mean it is in the public domain? Is it under copyright purely because I pressed a button? If the second, than what about if I use a timer for a family photo, or indeed -- if I use a remote trigger? In that case, the camera is detecting an infra-red bounce as the trigger to take the photo -- almost exactly like those camera traps do.

So calling it clear as day simplifies an extremely complex issue.

In the case of Slater, the camera was used without his consent by a non-human, and so that clearly falls in the public domain. But for camera traps, the wildlife is not walking into the frame with the purpose of taking a selfie; they're just moving around in their habitat, and a carefully constructed method to capture an image takes place, guided by a human.

Re: Re: Re: ILCP sadly supports Slater

This is accurate. The questions are (1) what does authorship mean and (2) what does expression mean.

I would argue that authorship includes the process of designing and setting up a camera trap for the purpose of collecting capture photos. The photographer setting up such a trap is designing a system which dictates when the photo will be taken.

In contrast, the "monkey photo" was framed and taken by the monkey, not by the design of a camera trap.

However, in counter I could argue that there is no real authorship in the camera trap. After all, you are not deciding exactly when the photo is to be taken, or the exact framing of the picture. Instead, you are letting the whims and chances of fate decide.

Even so, I think this argument will fail and the other argument will win. There is authorship in the setup and design of a camera trap. There is not authorship in the monkey photo. (Well, not human authorship.)

Re: ILCP sadly supports Slater

If there is copyright to be had, someone will argue (and in fact Slater already has) that there was authorship in the setup of all the equipment that was then used by the monkey to snap the picture. How is it any different that an animal steps in front of an IR sensor triggering the shutter vs pressing a button to trigger a shutter? I don't believe there is. But in neither case did a human trigger the taking of the photo, so I argue that in both cases, there is no copyright claim.

Re: Re: Re: ILCP sadly supports Slater

The originals are either in the public domain or under your copyright (depending on where you fall) and the cropped photos are either in the public domain or under your copyright depending on whether the cropping is found to be transformative. If it doesn't go to court, assume it's under copyright (and yeah, that goes back to the point of this article).

Re: Re: ILCP sadly supports Slater

But that's precisely the problem.

If I throw hops, grain, water and yeast into a pot, I have made beer. Or have I? Yeast is a living organism, and it is the fact that yeast eat sugars and excrete alcohol that makes my soup into beer. It can easily be argued that the yeast made the beer, since I lack any ability to turn sugar into alcohol.

Likewise, I can set up a camera trap to take a picture of wildlife, but it's the animal that technically pressed the shutter button by tripping the motion detection sensor. If an animal presses the shutter button, the picture won't be mine. To avoid the problem of the animal being the one to trigger the camera, I'd either have to have a very long duration video camera that I press record on, or remotely monitor the trap and remotely activate the button to take the picture.

There's no obfuscation needed to note the fact that people all over the world make their living off copyrights that are arguably not theirs at all if an animal activating a camera results in an uncopyrightable image.

Re: Re: ILCP sadly supports Slater

The ambiguity comes in when you need to define what constitutes "took the photo" - setting up a camera trap is doing everything to take the photo but being present and pushing a button. The monkey selfie is a little different I admit, but if you said that someone who set a camera trap didn't take the photo, well, I think they'd have good reason to take you to court. The insight, knowledge and skill to successfully utilize a camera trap definitely makes an author in my mind.

Re: ILCP sadly supports Slater

You know, that makes me wonder, who - if anyone - owns the copyright on surveillance camera footage?

There's really not that much difference from a human authorship standpoint between a camera left running in the wilderness, and a camera left running in a store. Both can even be set up to be activated by a motion sensor so that they'll only record when something is actually happening.

Re: Re: ILCP sadly supports Slater

In both cases, the person who set it up to record owns the copyright (unless they ceded that copyright to someone else, like the owner of the establishment being recorded). Now if a gorilla came in and set up the surveillance camera, as they would be non-human, the footage would be in the public domain.

Re: Re: (surveillance camera footage)

Most businesses don't care about copyrighting their surveillance footage because they don't intend to distribute such. They will consider all surveillance imagery as proprietary information for internal use only. After a certain time period it's destroyed, nowadays by recording over the disk space. If it's needed to be preserved and distributed, it's recorded onto other media. Try to access any business' surveillance system without permission and watch them scream using every law except copyright.

Not to mention that 99% of every business' video isn't worth distributing in the first place, even for free.

Re: ILCP sadly supports Slater

While I could see an argument that trap camera photos would not have a copyright, there is significantly more human artistic input in a trap camera than in the Monkey photo.

Trap cameras are set up intentionally (the monkey photo was an accident). You not only select a location, but you mount the camera facing a specific direction, possibly clear branches for lighting, etc. None of that happened with the monkey picture.

I do, however, have trap camera photos from during and after a bear attacking my camera. These, I would suppose, would not have a copyright since all of my "artistic" input was removed by a bear.

Re: Re: ILCP sadly supports Slater

Good point; if a bear has messed with your camera, all photos taken after the fact would probably be public domain. That said, any transformative derivatives of those photos would belong to the person doing the transforming -- so (as I originally commented in the Slater issue) if you only released the derivatives to the public, nobody else would have access to the public domain works, and yours would be under copyright.

Re: Re: Re: ILCP sadly supports Slater

Ok, now say I come back to my trap camera and see that a bear has swatted it from the tree and it is on a pile of brush a few feet away facing another direction (exactly what happened according to the pictures, actually).

Instead of putting my camera back, I make an artistic decision to leave it where it is. While I did not actively set up the camera, I have now passively accepted the positioning of the camera. I wonder where I would be at with copyright.

The only thing I am sure of is that the bear is still screwed out of his royalties.

Re: Re: Re: Re: ILCP sadly supports Slater

"The only thing I am sure of is that the bear is still screwed out of his royalties."

Ah... but here you're assuming that someone must own the rights to the images.

Copyright is a fabrication created by humans to encourage the production of creative works by humans. This is why animals are exempt -- their works stay in the public domain. By this definition, work created by a non-human is de-facto public domain unless we craft some misguided law to say otherwise.

This of course also means that DNA in general is not copyrightable, as any Intelligent Being is not human, and therefore its works fall in the public domain. Controlling the expression of DNA *might* be copyrightable, if that method of expression was created by a human.

Re: Re: Re: Re: ILCP sadly supports Slater

Now this is why I read TD... to get all the latest news concerning the participatory epistemology of civil law as related to authorial participation in post-bear-attack motion-triggered camera orientation.

Re: ILCP sadly supports Slater

Well...in this case, the monkey did all the work...? Trap photographers do all the positioning and setup with intention and expectation and execution, the animal is just meandering through. Although you could say the same of video surveillance cameras, are those copyrighted? Dunno, I'm no expert.

Monkey Selfie brings to mind a video I've seen that was 'taken' by a large bird (seagull?) that grabbed a recording iPhone off of someone and took it for a flight.

Re: ILCP sadly supports Slater

Interesting point but it makes me wonder whether the amount of interaction with the equipment will end up being the determining factor. For example, in the monkey selfie photo above, the monkey physically interacted with the camera and through it's direct action, caused a (rather fortuituos) photo to be taken. For camera traps, the photographer does all the setup and touching of equipment. All the animals do is walk into a sensory field and, I'm guessing in most cases, have no clue there are man-made objects about.

Take it a step further and instead of an animal, another human ends up being the subject in a photo from a camera trap. If the subject was completely unaware their picture was about to be taken, would they still own the copyright according to your theory?

As I said above - interesting point and not one that I'm even remotely qualified to answer.

Re: Re: Re: ILCP sadly supports Slater

The subject of a photo does not get a copyright in it. Just the photographer (unless it is a selfie, I suppose).

No, the person or persons who get a copyright in a photo are those who determine what the photo will be, basically. Camera settings, the decision of when to open and close the shutter, but also the composition and pose of the subject, choice of background, lighting, etc. are part of it.

Look up the Burrow-Giles case for more on this. But what doesn't matter is merely whether your finger was on the button.

Re: Re: Re: ILCP sadly supports Slater

Re: ILCP sadly supports Slater

I think in the case of camera-traps the copyright would still go to the one who set it up, as they have still done all the work. The manner may be different, but they are even still the one who took the picture, it's just instead of pushing a button, the 'trigger' is a motion detector.

It's a shame that they've aligned themselves with someone who, at least in my opinion, is so clearly wrong in his claims of ownership. He contributed the camera, that was it, the situation is vastly different than people who go through all the trouble to set up camera-traps, and I really wish they had put enough thought into the matter to realize it.

Re: ILCP sadly supports Slater

To me, there's a huge difference between "picture taken by a machine configured by a human to trigger on a certain event" and "camera left unattended and an animal presses the button."

It seems pretty clear to me that in the case of the camera trap (or for that matter, a self-portrait taken using a timer), copyright would apply. However, in the case of an animal wandering over and messing with your stuff, copyright would not apply.

Re: ILCP sadly supports Slater

I would say that there's a specific, significant difference between a camera trap and Slater's monkey business.

The camera trap is intentionally set up by the photographer to capture the image it gets, even if, much like a wildlife photographer manually taking a picture, it can't control the composition of the living, moving elements that ultimately get captured in the final image.

By his own admission, Slater didn't intend on the picture getting taken and didn't intentionally set up the situation in which the monkey took the picture.

A more interesting discussion might be about the difference between a photograph and a video. If a monkey picks up a camera and takes a single shot you weren't planning, you arguably can't claim copyright on that image (despite Slater's fantasy).

But what about if you have a video camera (or your smart phone, i.e. same thing) and start recording a video, but then drop it and a monkey picks it up and points it at stuff and then drops it and you pick it up and point it at stuff. You started and ended the video with human authorship and control, but what about the middle part where the monkey (unintentionally on your part) shot some footage? I doubt many would argue that you only have copyright over the beginning and end, but not the middle of the video since it's seen as a single video. Is there a percentage of human authorship necessary to claim copyright on a work that may be argued to be a collaborative effort between a human and a non-human?

Re: Re: ILCP sadly supports Slater

What kind of video were you taking in which you lost control of the camera and dropped it, it was picked up by a monkey, and you later have the ability to reclaim the camera from the monkey and still continue to shoot?

Re: Re: Re: Re: ILCP sadly supports Slater

Re: monkeys, camera traps, and other non-human shutter triggers

IANAL, but this talk about "intention" seems like a slippery slope. If Slater asserts that he completely set things up and left the camera out intending an animal to come up and take a photo, does he now magically own the copyright? And sure people set up camera traps intending animals to trigger them. But the key is the human is not actually doing the triggering.

This reminds me a bit of Halakha, where Jews are forbidden from doing "work" on Shabbat which includes turning electrical devices on and off. Some Jews get around this by employing a switch with "Halakhic uncertainty" so that even though the performed an action that eventually results in an outcome, the outcome is unpredictable and indirect.

Personally I feel that unless the human is directly triggering the shutter, then they don't own the copyright. Of course that brings up further edge cases: if they just hit record on a video and let it go for the whole day, can they pull a frame out of that and claim copyright? It gets back to the video surveillance issue.

I think this discussion is great; thanks to all for participating. And it is indicative that there is no clear answer here and further solidifies my believe that this will ultimately have to be litigated to create case law.

Re: Re: monkeys, camera traps, and other non-human shutter triggers

"Personally I feel that unless the human is directly triggering the shutter, then they don't own the copyright."

My sense is a bit more nuanced than this. Actually pressing the shutter is not where the creative requirement for copyright comes in -- that's in the framing, lighting, etc. If a photographer arranged all of that, set the camera up, and let someone else press the button, I think the copyright would still properly belong to the photographer.

However, that's a world apart from the monkey photo, where the photographer did none of those things.

Re: monkeys, camera traps, and other non-human shutter triggers

But now there's a fuzzy line. Setting up a camera trap in an area might set up the frame. But the lighting is ultimately up to nature. It could be sunny, cloudy, raining, etc. And none of those are controlled by the human. And of course they aren't choosing the subject matter either. It is whatever happens to wander into the frame. We are in a very nebulous area where sure, the human did some setup work, but there are a LOT of other variables outside of their control.

Taking this reasoning further, could you argue that Canon or Nikon has a legitimate claim to copyright on photos taken with their equipment? After all they "set it up" by designing and manufacturing the equipment. They just happened to "let someone else press the button".

Re: Re: monkeys, camera traps, and other non-human shutter triggers

"But now there's a fuzzy line."

There will always be a fuzzy line of one sort or another. That's why there are courts.

"Taking this reasoning further, could you argue that Canon or Nikon has a legitimate claim to copyright on photos taken with their equipment? After all they "set it up" by designing and manufacturing the equipment. "

I disagree. Manufacturing the equipment used isn't even remotely close to setting up a shot.

Read Slater's own words on his own website. He set up the shot not the money. The monkey came and played with the camera on a tripod and hit the button. This story has been around since day 1. Only people who wish to steal say otherwise, quoting hearsay from British tabloid hacks.

Re: Re: monkeys, camera traps, and other non-human shutter triggers

"Some Jews get around this by employing a switch with "Halakhic uncertainty" so that even though the performed an action that eventually results in an outcome, the outcome is unpredictable and indirect."

That link is extraordinary. Sometimes the stupidity of religion doctrines makes me want to bang my head against a wall...

Re: ILCP sadly supports Slater

I would argue that what you say makes no difference to the legal status of the monkey selfie. Camera traps are deliberately set up by humans, so there is some merit to the argument that there is human authorship of the images captured by them. On the other hand, the monkey selfie was taken by an macaque that picked up a camera that had been momentarily put aside, so it's clear that there was no deliberate human involvement in its creation. Simples!

Re: Re: ILCP sadly supports Slater

...it's clear that there was no deliberate human involvement in its creation.

You mean besides the fact that humans manufactured the camera, charged the battery, inserted and formatted a memory card, configured the settings, carted it into the jungle, turned it on, set the parameters, and left it out for a monkey to pick up. Besides that...

Re: Re: Re: ILCP sadly supports Slater

[...] left [the camera] out for a monkey to pick up.Really? David Slater deliberately left a camera out for a monkey to pick up, even going so far as to encourage the creature to do so? Because I distinctly remember him saying otherwise before others started copying the image.

Re: Re: Re: Re: ILCP sadly supports Slater

Really? David Slater deliberately left a camera out for a monkey to pick up, even going so far as to encourage the creature to do so? Because I distinctly remember him saying otherwise before others started copying the image.Perhaps you remember The Daily Mail saying otherwise, but Mr Slater told the whole story on his own website back in 2011, well before he got dragged into this disgraceful mess. Hope that helps.

Re:

Perhaps David Slater should watch and listening to the following music video from Peter Gabriel. The theme of the video? "Intelligence life is all around us". It's called "Animal Nation". Slater is a moron. You cannot copyright mother nature. LOLS

Re: Everything must be owned.

Actually the 'public domain' is the exact _opposite_ of ownership. It means that _no_one_owns_it_.

In other words, it's just lying around in public available for anyone to use for anything [legal that is].

The everything must be owned mentality is the reason some groups don't allow public domain works on their sites. Since everything must be owned by someone they require permission of the copyright holder before allowing things to be uploaded (posted). Public Domain items, by definition don't have an owner, hence no one can give permission [none is needed].

Re: Re: Everything must be owned.

Actually, he raised a good point. Does public domain mean that there is no ownership, or that it is owned collectively by humanity? Western society has long viewed "public" as meaning "for all people" and, for example, has laws about dogs being on leash on public walkways. If "public domain" meant "no ownership" than you have one of two situations: either anyone/thing who has access can do whatever they want with the property in question, or the domain can be artificially restricted via other rules and techniques at any time (the restriction only lasting as long as it is enforced).

I haven't read the most recent USCO paper on the issues in general; it is possible that it addresses this directly.

Re: Re: Re: Everything must be owned.

It may depend on the jurisdiction but in some places (e.g. the UK afaik) there isn't really such a thing as the "public domain" in copyright law. It is a term used to describe things that are no longer covered by copyright.

Put simply, copyright property rights are a creation of the law, so they only exist if the law says that they exist. If there is no copyright there isn't anything for anyone - the public, the author, whoever - to own.

Re: Re: Re: Everything must be owned.

Just tossing the idea out, but one way to determine could be control.

If you own something, then it follows that you can exert control over it, and it's use. I can give someone a paperback I own for example, or sell it, or destroy it, or any number of other things, therefor I could be said to own it.

When it comes to a licensed ebook on the other hand, I can not do these things. I cannot sell it, I cannot loan it(without permission or without breaking the law), I cannot do any number of things regard it, therefor it would be safe to say that I do not own it, but have merely purchased some temporary rights to it.

Applying this to the public domain, works that fall under that cannot be said to be controlled by any given person. Person A cannot prohibit Person B from doing whatever they please with a given public domain work, and vice versa. As such, with no-one having control over public domain works, I think it makes sense to say that no-one owns the public domain, rather than everyone.

Re: Re: Re: Re: Everything must be owned.

Something owned by everybody is the same as something owned by nobody.

There is a difference between the two though. Something owned by everybody means everybody has a right to it. You even have the EPA to enforce it, wrt pollution. Something owned by nobody means no-one may exert control over it nor accept responsibility for it. Insurance companies disclaim acts of "the big guy."

I think it's sad that certain organizations insist someone must claim copyright for them to recognize it, but that's legal CYA stuff, and probably necessary.

Re: Re: Re: Re: Re: Everything must be owned.

Yeah, I'm still not seeing the distinction. If something is owned by nobody, then anybody may use for any purpose they want (except that they can't take "ownership" away from everyone else) and they are subject to all the consequences of their own use of it. The exact same thing is true if something is owned by everybody.

In the end, the concept of ownership only has any meaning at all if it's exclusive, if there are people who don't own it.

Re: Re: Re: Re: Re: Re: Everything must be owned.

"If something is owned by nobody..."

...then Nobody will send you a demand letter. If you don't pay, Nobody will sue. If you don't answer the complaint, Nobody will get a default judgment. And then Nobody will take everything you have. Eventually, Nobody will sue everybody, Nobody will own everything, and everyone will have to get a license from Nobody.

Re: Re: Re: Re: Re: Re: Re: Everything must be owned.

Re: Re: Re: Re: Re: Re: Everything must be owned.

The difference I was pointing out is this: if something is owned by everybody, that means humanity (or some slice of it) gets to dictate how it is used. If something is owned by nobody, use is not dictated by humanity -- some alien being or a monkey could make free use of it (for example, the sidewalk).

Take the real estate example: Pre-Europeans, nobody owned the land. Post-europeans, land not owned by an individual was owned by the government, meaning everybody owned the land. Look at how those two methods impacted land use and the movement of wild game.

I still have problems with both side's arguments

Someone brought up the topic of camera traps: here arguably more of the photographer's creativeness is involved since he sets up the whole background and only the moment of the photograph is determined by animal crossings. And even that may only roughly be the case since the photographer will tend to set up a shot series and then will take his own sort-of-artistic choice of the best of them.

Now this delegates remarkably more of the creative work to the hands of the photographer than handing the camera to an ape (or in this case it sounds more like the camera being stolen by the ape) involves.

If we argue that a phototrap photograph is not copyrightable by the one setting up the camera, what about self-timer photographs? Again, ultimately a mechanism started by the photographer is responsible for the exact trigger point of time.

Is it markedly different to trigger a photograph by a timer than it is by triggering it from an anticipated external event?

With regard to setting up the photo trap contest, I believe a better argument concerning a substantial copyright-permissable amount of creative work for setting up a photograph may be attributed, as opposed to the act of handing the camera to an ape: in the case of this photograph it is pretty obvious that the motive was not to any degree chosen by the photographer, and even camera settings like exposure and distance were rather likely made automatically rather than manually.

I once made a rapid-motion film of the blossoming of a Queen of the Night cactus. Here every single exposure was triggered by a timer I had built myself. Would that short film not be copyrightable since the trigger was not automatic but rather done by a process of nature (the periodic charging of a capacitor)?

I wonder if these people would understand "public domain" if we explained it to them as "the public owns the copyright".

That's not accurate seeing as the "public" "owns" a lot of things not just any member of the public can make free use of, or that the "public" can sell of to a private entity. Still, it may be a jumping off point to explain things to them.

Re: Re:

Prior to European settlement of North America, the people living on the continent had the concept that nobody could own land; it just _was_.

When the Europeans arrived, they started fencing it off and assigning owners, and calling the land "real estate". When a named owner of the land died or abandoned the property, ownership of the land reverted to "the crown" because Europeans could not fathom land belonging to nobody. They figured if the parent country didn't own it, someone else would claim it.

This viewpoint has migrated wholesale to the realm of Intellectual Property, even though the estate is surreal, people often project the European view of Real Estate onto it.

That might help understanding the hurdles that need to be overcome to help people understand what Public Domain is.

Re: Re: Re:

Prior to European settlement of North America, the people living on the continent had the concept that nobody could own land; it just _was_.

That was the noble savage fairy tale, but I never bought it. Natives certainly did exert ownership over tribal lands. Any specific native may not have owned it, but it was considered owned by the tribe communally.

Re: Re: Re: Re:

It went beyond the noble savage fairy tale -- Natives exerted control over areas and uses of land, but they didn't have the concept of land as property. The "ownership" moved with the tribe, and was not tied to a specific piece of land (except in specific cases, such as limited resources or burial sites, where the use for the land couldn't move with them). They didn't try to keep animals off the land either.

Re:

"I wonder if these people would understand "public domain" if we explained it to them as "the public owns the copyright"."

It might help some, but it would still be a bad idea because you're trying to educate someone with incorrect info. If it's in the public domain it simply has no copyright, either because it's expired or it never existed.

Re: Which monkey

Reference to Guernsey's Image Rights

The image is registered with the USCO and is a part of a registered Image Rights under Guernsey Ordinance 2012.

This stood out for me, as this is one of the first uses I've seen of Guernsey's Image or Personality Rights. A couple of years ago Guernsey (a small island off the coast of Normandy, population around 65,000) made a big deal about being the first place in the world to have a specific "intellectual property right" covering images and personality.

The idea was that lots of famous people would pay to get their images registered so they could try to enforce these rights everywhere else. A quick check in the Image Rights Register (you have to register to see it) shows that they have managed to achieve an impressive ... 51 registrations, including the monkey one.

It seems the monkey image is one of three images registered in the name of Wildlife Personalities Limited (the company David Slater is the director of). One of them has "Wildlife Personalities" and the monkey photo, another is just the monkey photo, and the third is a second monkey photo.

What I find interesting is that based on a quick check of the relevant law I'm not even sure if the latter two are valid registrations, or that use of the image (in this or other articles) would be an infringement.

Specifically I think the images fail to be distinctive under 28(2) (i.e. widely associated with the company), nor do I think that the monkey photos are actually "images" within the definition of 3(1), as they show a picture of the monkey, not the company - and it is the company that is a 'personnage' and has potential image rights, not the monkey. Plus there's a specific "fair dealing for the purposes of news reporting" exception, and even a general "fair dealing" one.

So while he may be correct in that the image is registered, that registration may be invalid, and the use of the image may not be infringing.

Skip the high-level debate

It's all in the second paragraph... the "disrespect" thing. Most of this flows from his profound disappointment that he's not hailed as a genius, a modern day Ansel Adams, for having owned the technology used here.

Re: Re: Re:

Re: Re: Re:

I don't believe the original story

I don't believe the original story that the monkey took the photo. Unfortunately for the photographer, he is now stuck between two bad positions:1. Admit that the original claim that the photo is a monkey "selfie" is bogus and his photo becomes his copyright, but also uninteresting or:2. Admit that he has no copyright on the photo.

Re: I don't believe the original story

That is certainly another option: "Oh, sorry. Actually I was mistaken. This photo was—in fact—taken by me. Now give me my copyright."

But of course there wouldn't have been nearly as much publicity around this photo if it were just another shot of a monkey. It is the story behind it that makes it valuable. So that's why he's trying to have the story and copyright too.

And here's the sad thing: David Slater could have used this 15 minutes of fame to propel him to more work and more success. Creative people know (or should) that at least half of your present paycheck is based on your past work. People hire you today because of the stuff you did yesterday. Take a look at any professional sports contract.

And yet he's blowing all of this opportunity to try to cling to a couple of photos. Let them go and keep creating. These photos might be a career highlight, but they shouldn't be the end of his career. This wasn't his "One Last Job."

Re:

Surely he CAN take a better photo of a monkey than a monkey can, can't he?

Probably, but the value in the photo is the idea that it was taken by the monkey. There are any number of good photos of monkeys, but there aren't as many supposedly taken by a monkey. That's what made it famous.

The "intention" word bothers me. Based on what most people are saying, if I am walking down the street and my camera falls out of my backpack and takes a fantastic picture, I am not the owner of that picture and I can't sell it. It is automatically in the public domain. The was no intent. There was no artistic input.

Re:

You may or may not own the picture(I'd lean towards 'not' for a purely accidental picture like the one you describe), but you could most certainly sell it, just like companies today can sell collections of plays by Shakespeare, despite not owning the plays. The only difference is, if you don't own the copyright on the picture, you couldn't stop someone else from selling it as well.

The "transformative" loophole

The discussion got me thinking: if I were a photographer like Slater and I wanted to try to game the copyright system, here's what I'd do. Regardless of how the photo was taken, I would crop, filter, color correct, and do other modifications to the source file. I could then release this modified version of the photo and legitimately(?) claim copyright on that particular transformation of the original.

Then I would be very careful to NEVER release the original file. In fact if I were truly evil, I might permanently delete it. Or I might keep a very low res copy (maybe even a print out to further discourage copying) just to have an example of the original to show my transformation if I somehow needed to prove this to the courts.

Of course this hurts the public. It encourages the sole caretaker of what is the only copy of public property to withhold or destroy it in order to create artificial scarcity of the transformative work.

And this begs the question: how much transformation is sufficient to warrant copyright? And can I claim a transformative copyright if I do not also make available the public domain source?

Implied Consent

IANAL: BUT, I believe the permission the photographer gave to the monkey to photograph itself could be applied as implied consent, and therefore, I believe the monkey should hold the copyright to the photo. Furthermore as there is no way to enter into a contractual agreement with an animal that I know of, the monkey could not consent to waive his or her right to copyright of photo he or she (it) did actually and physically capture with a photographic device the photo in question of itself. Nor could the monkey agree to any amount of payment in bananas or legal tender, etc.. to sell or lease copyright as it does not possess a working understanding of any spoken or written languages as humans may use as is neccessary in contract law agreements. And whereby, there could not be an understanding or meeting of the minds, heretofore, verbally or with a handshake, no transfer of copyright could be deemed by any court, with exception possibly being a kangaroo court, legal.

Re: You Self Serving blinkered fools

Mr. Kasslick,

You're absolutely right—I published those monkey selfie images when I blogged about this issue 3 years ago. As you no doubt are aware, the use of images for discussion and debate—especially when there is no money involved—is basic fair use, regardless of who (if anyone) holds a copyright.

Re: Re: You Self Serving blinkered fools

In 2011, Slater said he used a tripod and he stated this in many publications. Daily Mail?????? Why do you blinkered fools believe stories and quotes from a single tabloid in the UK? Yeh right, MMR causes autism, weapons of mass destruction in Iraq existed, there is a London bus embedded in the Antarctic Ice Sheet!!!!! Does it serve your freeloading agenda to cherry pick tabloids? Really! Do you actually believe tabloids report properly? This site is so up its own arse it is unbelievable.

Re: Re: Re: You Self Serving blinkered fools

Yes, you are correct that Slater left the camera on a tripod. But he also admits that the animals were "monkeying around with it" and that "One hit the button. The sound got his attention and he kept pressing it".

Basically, Slater admitted that the monkey determined the creative elements and actually took the picture.

Re: Re: Re: Re: You Self Serving blinkered fools

Hi everyone, new to this site. Been following this story from day 1 and also this site. I used to agree the image was public domain because a monkey ran off with the camera. But I have come to realize that a camera on a tripod cannot be stolen by a monkey. Gwiz incorrectly claims: "Basically, Slater admitted that the monkey determined the creative elements and actually took the picture."

Where on Earth does he say this because this admission would put it back in the public domain? How can a monkey determine the composition if it was on a tripod?

I am starting to believe that some folk on here are grasping at straws.

Re: Re: Re: Re: Re: You Self Serving blinkered fools

How can a monkey determine the composition if it was on a tripod?

Slater admits that the animals were "monkeying around" with the camera. And based on all the other photos I've seen from this shoot the camera was not left in place on the tripod. The monkeys moved it. Slater certainly didn't determine the composition of these photos.

Re: You Self Serving blinkered fools

The tripod is an irrelevant red herring. The monkey both put herself in the frame and pressed the shutter. There's no way Slater can argue that he framed the monkey in that way intentionally and all the monkey did was trigger the shutter.

Which is the same reason why camera trap photos cannot be copyrighted either. Yes the photographer chooses where to place the camera and point, but they do not specifically choose which animals are in the frame, which way they are facing, the specific lighting conditions at the time of capture, exactly when the shutter is triggered, and a whole host of other variables.

Whoever takes this one to court will have an uphill battle convincing a knowledgeable judge that they hold copyright on camera trap photos.

Re: Re: You Self Serving blinkered fools

You earlier admitted to me that you willfully infringed this monkey photograph for your own uses and now you attempt to remove the rights to copyright from all wildlife photographers who use "traps".

The highlighted comment of yours that starts this thread clearly has you insulting the International League of Conservation Photographers or ILCP.

These photographers, of which Slater belongs, brings wildlife organizations, schools and the public too a major benefit. Without these talented photographers we would know a lot less about our planet and its animals.

This includes photographers and film-makers like NatGeo and the BBC.

David Cortwright - you are a disgrace to any wildlife charity or profiteering business that has you, and especially The Wildlife Conservation Network of which you claim to work for.

I think a letter to the WCN is in order. You are a threat to the efforts that wildlife conservationists make, including Slater of course.

Re: Re: Re: You Self Serving blinkered fools

You earlier admitted to me that you willfully infringed this monkey photograph for your own uses and now you attempt to remove the rights to copyright from all wildlife photographers who use "traps".

I think it's more accurate to say said copyrights were fraudulently obtained. How can copyright be obtained if the person claiming it doesn't even need to be there when "the work" is created? I can't blame them for trying. There's money on the table, after all.

This whole episode reminds me of the discussion held about a century ago when portrait and landscape painters were protesting that this new-fangled photography thing was attempting to place itself on par with real artists.

Threatening Cortwright for stating his opinion is a despicably low blow. You have the makings to become a lawyer, I'm sad to say.

Re: Re: Re: Re: Re: Re: Re: You Self Serving blinkered fools

Maybe you need to do research rather than guesswork to support your ideology? Maybe try reading this to start!

I have read that. Seems like his story has changed some since this went viral, in my opinion.

And just so you know, I have no agenda or "ideology" that I am pushing regarding this issue. The legal aspects of copyright are an interest of mine, nothing more, nothing less. This story caught my interest and I believe the legal analyses that indicate this photo is public domain are correct. Other than that, I couldn't give a shit whether this particular photograph is under copyright or not.

Re: Re: Re: Re: Re: Re: Re: Re: You Self Serving blinkered fools

Your analysis on copyright proves you are not educated enough about copyright.

If EVER, there is EVER another example of doubt about copyright like this one, the true copyright expert would use the precautionary principle and keep quiet and not promote the stealing of this image to others around the world.

Mike Masnick, as owner of this site, is culpable of not just copyright infringement and abuse of Fair Use, but a criminal under Common Law also.

This is the result of believing a silly self-promotionist working for a wider agenda, that I promise, is not in your interest. He is well paid for YOUR ignorance and pathetic attempt to climb the ladder of the Free-Rights leadership party.

Re: Re: Re: Re: Re: Re: Re: Re: Re: You Self Serving blinkered fools

Your analysis on copyright proves you are not educated enough about copyright.

You are certainly entitled to your opinion.

If EVER, there is EVER another example of doubt about copyright like this one, the true copyright expert would use the precautionary principle and keep quiet and not promote the stealing of this image to others around the world.

Quite a few "copyright experts" have already stated their opinions that this photo is public domain. Your use of the word "stealing" instead of "infringement" says quite a bit about your (lack) knowledge of concerning copyright.

Mike Masnick, as owner of this site, is culpable of not just copyright infringement and abuse of Fair Use, but a criminal under Common Law also.

Nope. Absolutely not. Even if this photo is under copyright, Mike's use to comment on the issues surrounding are absolutely Fair Use. Once again your lack of knowledge concerning copyright is showing.

This is the result of believing a silly self-promotionist working for a wider agenda, that I promise, is not in your interest. He is well paid for YOUR ignorance and pathetic attempt to climb the ladder of the Free-Rights leadership party.

Blah, blah, blah. Quite a conspiracy theory you got going there, my friend. What are you going to say next - that we didn't land on the moon and aliens actually shot Kennedy?

The USA simply hadn't the intelligence to land on the moon in 1969. It hardly has now. Kennedy was shot by several gunman acting alongside the CIA patsy that got the blame.

How could the USA have the intellegence? Because it's citizens even today can't understand the simplest of things still, like Fair Use.

Fair Use must be Fair to the human photographer that created the works. It certainly is not Fair to reject the photographer's claim so that little pricks like you can take the image for your own profit.

Mike Masnick is not just wrong but a fool as well

You really should not believe the owner of this rather silly site repeating constantly that the monkey ran off with the camera and the camera was left unattended. Masnick wants a public domain to serve the Communists...err, Community. He wants to promote this site to similar minded freeloaders and now jumps on the monkey selfie bandwagon hoping he can earn thousands talking to the next corporate client who similarly wishes to use photographic works for their own self-serving interests and bottom line. Agenda 21 Mike? You are unwittingly a puppet.

Re: Mike Masnick is not just wrong but a fool as well

He wants to promote this site to similar minded freeloaders ...

I'm not a freeloader. I'm a boycotter! I avoid all of your copyrighted for eternity crap. I want you jerks to go out of business. I hate you all for trying to twist my world into something it never should have been. You're corrupting our elected politicians with bribes, you're perverting the judicial system and needlessly enriching ambulance chasers, you're a drain on the economy of the world, all for your own personal enrichment at our expense.

Keep it up. I'll cheer when I see the likes of you hanging from a lamp post!

Re: Re: Mike Masnick is not just wrong but a fool as well

@ Gwiz, it's about the misguided belief that everything must be owned by somebody. I think it's a kneejerk reaction to the Communist belief that property ownership is theft by definition.

The fact is, they're both wrong. We need a commons; there has always been one and nobody was deprived of property rights in the creation thereof. Its existence doesn't stop people owning stuff, either. It simply means that some things are shared and others are not.

Can we please stop doing the boogeyman thing? The Red scare should have been dead and buried years ago. It stops rational discussion dead... though I guess that's the point.

Re: Re: Re: Mike Masnick is not just wrong but a fool as well

But the assumption that potentially profitable artwork becomes your "property" (or not proerty according to your twisted thinking) doesn't make it right, or a Right.

Put simply, "Commonsists" are Communists but with a small but important difference. You want to profit from other people's skills. You are the Corporatists who hope the Proles will give up their property for your personal benefit. You are property "Supremecists" because you want all property to be yours, to use for your own profit, and f**k the stupid idiots who complain they should have some rights to control what they made.

You and the usual commentator on Techdirt have the same ideology of a slave trader. Give up your work for the benefit of the rich, because your profits may trickle down to the poor.

If your Communist Cult ruler Masnick would pay artists to produce for your benefit, you may get your way. Until then, artists need copyright protection and the right to make a living from their work.

Cult of Masnick

I think this site does a great job at discussing all manner of copyright issues, but I really think that Mike Masnick is leading all the followers of this site into a sort of cult about these images.

The insulting words of many users on here suggests a clique that collaborates to push an agenda of no ownership without a valid basis. This is especially vocalized on here for things like Intellectual Property.

I just cannot see why some surely good folks on here are so paranoid that copyright means the air will soon be owned! Rights to property is in our Constitution and what made us great. It is what separates us from Communism.

I also see the Cult of Masnick seems incapable of understanding that the press is not a source of facts. I see this faulty line of reasoning all over this story going right back to 2011. Faulty because it relies on a single newspaper. Even if it were more newspapers, folk should understand that papers copy stories from each other - just like websites that promote a free-rights agenda also do.

Has anyone ever asked Slater for the story behind these beautiful and iconic images? Did Masnick ever reply to Slater when his appointed agent asked the images to be taken down, or was he just rude as per his reply as published on this site? If he has communicated with Slater, please could Mike share with us what Slater said (not his agent) in defending his claim he is the author.

If I were Slater I would be livid with rage at Masnick who has completely encouraged people to infringe these photographs. Slater should be making a decent living from these images in my opinion.

And because Masnick and his cult followers hang on his every faulty word in this matter, I do wonder if Masnick is making replies on this site under various pseudonyms? What's the truth Mike?

I see you wrote your own profile on Wikipedia, something frowned upon because self-serving articles are, well, just that. Very underhanded indeed! It looks like Masnick and "his" cult may be his very own self-serving spawn on here?

Re: Re: Cult of Masnick

By the way, you may not be aware that the little snowflakes next to your name indicate the IP address you post from Ian/John Kaslik/David Slater.

As hilarious as that sounds, I should remind you that an IP address does not identify an individual. For all we know, two of them are next door or in their cars outside leeching wifi off the third. It doesn't preclude them all being a single corpus dilecti, but it doesn't prove the alternative either.

Re: Re: Re: Cult of Masnick

Yes its funny that any number of folk can make comments here, even ones staying in the same hotel. When this site opens itself up to the wider world because of its self-serving promotion using the famous images of a monkey (and you aren't alone Techdirt - your colleagues at various other sites are doing the same in collusion with Masnick)you should expect to be tested by more intelligent and research worthy individuals outside of the Techdirt clique. I for one will try to round up a few more onto here to add their opinions, if only to counter what I think Masnick is doing - using multiple pseudonyms. You can't all be anonymous cowards? But then again, cowardice is probably a trait most attributable to freeloaders.

Re: Re: Cult of Masnick

That's only applicable if its in the public domain, which in my opinion from researching this topic thoroughly, it certainly is not. The camera was on a tripod and therefore no different from a trail camera tied to a tree.

I can't tell if Slater has changed his story, but the newspaper reports are not credible sources of information that is what I know. And even if they were, I still can't see where you are coming from?

Re: Re:

I knew it was baiting because there there is no logic to your arguments at all. Ad hominum is the tactic of people like you who cannot answer a simple damn question. Where does Slater say he had no creative involvement in the photographs? Where? Stop attacking the people who are pointing out the insanely obvious to you. Wake up.

Good for you for finding a little loophole which you think entitles you to steal a photograph. I'm not disputing that public domain is a good thing, however the way you are attempting to use it as an argument is morally reprehensible and extremely damaging to your cause. In what way does denying artists the ability to make a living good for society exactly? Plus, the assumption that photography is nothing more than button pushing is insulting to the entire profession, and it smacks of the all-too-common belief that artists are nothing more than glorified hobbyists who need to get a real job. It really comes off like you're just whining about having to pay royalties, so you're trying to vilify Mr Slater. Not a good look mate.

Re:

Lack of copyright isn't preventing Mssr. Slater from collecting money from this picture. It is for sale on his web site, and wtop.com paid him for their use of it back in August when they wrote about it. He has also gotten a lot of attention for him and his photography from this story (I certainly hadn't heard of him before this) which no doubt has led to more business opportunities. To say Mssr. Slater has not benefited from these selfies that happen to be taken by a monkey using his equipment—despite the fact that they are not covered by copyright—is either ignorant, facile, or both.

Protip: if you want to argue intelligently about intellectual property issues, I highly encourage you to learn the difference between "stealing" and "infringement".

Re: Re:

I'm glad to hear that wtop.com paid, however techdirt.com has not, and in fact proudly and loudly refuse too. Describing these photographs as "selfies that happen to be taken using his equipment" is exactly the type of anti-artist attitude I find so infuriating. Btw, it actually has yet to be determined that Mr Slater "lacks a copyright". This case hasn't been to court, and last I checked Wikimedia is not a government body. Simply because they've decided to claim the photograph as public domain does not automatically make it so. Nor does the USCO compendium decide anything either. So far, there has been nothing but baseless opinions about what authorship means. And it is my opinion that those on Mr Masnick's side of the debate appear to me to have an agenda involving not paying artists for their work.

Re: Re: Re: Re:

Did the monkey choose the lens, set the ISO, do the final color grade, etc? You're focusing on only one step in the photographic process, the shutter button, which to me sounds like an attempt to devalue the role of photographers in creating their work. If you step outside this little circle for a moment, you might find that quite a few "real artists" share my beliefs on this.

Re: Re: Re: Re: Re:

What you and other "real artists" believe, and what the law says are not necessarily the same thing. And in this particular case, they are exactly the opposite.

The amount of effort or expense one exerts in an endeavor is ultimately not relevant in what one receives as a result of said endeavor. Poet Robert Frost wrote one of his best poems—Stopping by Woods on a Snowy Evening—in just "a few minutes without strain." Whereas countless aspiring writers have written reams with nary a ruble rewarding their effort.

Re: Re: Re: Re: Re: Re:

I'm not trying to make the argument that he deserves any rubles simply because he bought a plane ticket and lugged the equipment, etc. I agree that's invalid. But denying that he had zero influence over the resulting photo is insulting. There is more to photography than pushing a button. There is more to this story than who or what pushed that button, especially since the main rationale on the Wikimedia talk page seems to insist the monkey has agency while simultaneously having no agency. Another example of Schrodinger's Monkey, perhaps? (I really like that, btw.) There is a lot of loopy logic going on, seemingly in an effort to make this a simpler black and white issue.

Re: Re: Re: Re: Re: Re: Re:

So you are arguing he somehow deserves partial copyright? What about the airline that flew him to the location? The guide who drove him into the field? The company that designed and manufactured the photography equipment he used? The electric company that charged the batteries he used? If merely twiddling a few settings (or even just leaving them alone, right?) confers rights, then maybe I also deserve some for not running out of the bushes and screaming "SHOO MONKEY! RUN FROM THE CONTROVERSY!" thereby disrupting the conditions that allowed this photo to take place.

Regardless, despite your false assertion, the USCO Compendium most certainly does make this a pretty clear cut case. But if you really want proof, then why don't you bring it to court Mssr. malbee?

Re: Re: Re: Re: Re: Re: Re: Re:

How do you know he merely twiddled a few settings? And why do you not consider twiddling of settings to be the active participation in the creation of this work? Where do you draw the line when it comes to potential aesthetic and technical choices Mr Slater may or may not have made? These are the questions that may come up during a court case, so you might start practicing your answers. "Monkey hit the button" is not gonna fly, i guarantee.

When it comes to this issue as a whole, I'm saying that making the argument that the monkey was the author while simultaneously claiming a monkey can't be an author is flimsy logic at best. (If that actually is the spirit of the law, then we can at least we agree the law definitely needs reform.) I still maintain that demonizing Mr Slater for writing a cease-and-desist is obnoxious and not helpful. Sure those letters are annoying, but his ownership is in dispute, yes? (And no, the USCO compendium is an unrelated set of guidelines for future registrations and not a direct ruling on this matter.) He should be allowed to persue his livelihood if he truly believes he's the proper claimant. Whether or not he actually does deserve it is not for me, you, Mr Masnick, Mr Siy, nor Wikimedia to decide. They simply found a hole in copyright law, and proceeded to push Mr Slater straight into it. And that leaves them open to criticism of their motives, which even some Wikimedia editors find repugnant. Again, this all just reeks of The Internet wanting everything for free, trying to avoid paying artists for their work, especially photographers.

The only reply I got regarding that point is one that called *me* the self-entitled one in this situation. Hmmm.

Holding this up as a victory is not only premature but it makes Mr Masnick, Wikimedia et al. look like a mean-spirited jackasses who are totally missing the intended purpose of copyright. It's meant to give content creators incentive to create content, right? Of course copyright is often abused. But the way I see it here, the abuse just happens to be coming from the other side. If this sort of BS quibbling carries on, then we'll all lose in the end.

I know we'll never change eachothers' minds, but I considered your thought exercises and found them to be useless hyperbole. I'll ask you consider the very real scenario in which an artist has a team of apprentices who do all the actual painting. The artist still claims copyright for the images, though he or she never touched the canvas. That does indeed happen, and those apprentices are not monkeys. They are humans, and by such a narrow interpretation of "authorship", those actual humans, possessing actual legal agency, are the ones who "pushed the button". Explain to me how you think this is different, and please try hard not to use the phrase "photographers don't count."

Finally, yes, I'd love to see this case in court, but asking me, (or even Mr Slater for that matter) to shell out a huge amount of cash to do it is not an effective tactic for winning in the comments section.

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I know I'm late to this discussion, but there are few things I feel I need to respond to.

They simply found a hole in copyright law, and proceeded to push Mr Slater straight into it.

I'm not really sure what "loophole" you are referring to, but Techdirt's use of the photo to comment on the story surrounding it is clearly fair use. In the US, fair use is most certainly not a "loophole" by any stretch of the imagination. Without the fair use defense against infringement, copyright could not exist in the US without running afoul of the First Amendment.

I'll ask you consider the very real scenario in which an artist has a team of apprentices who do all the actual painting. The artist still claims copyright for the images, though he or she never touched the canvas.

That would most likely be considered a "work for hire" scenario and is usually covered by contracts between the parties where the individual artist relinquishes their copyrights in exchange for wages. This is how big production movies are handled. All of the cameramen don't end up with the copyright of the movie even though they are the ones actually affixing it to a tangible medium.

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You're not late at all, Gwiz, and I'm happy you're joining the discussion. Thank you for not calling me names!

I'm not really sure what "loophole" you are referring to, but Techdirt's use of the photo to comment on the story surrounding it is clearly fair use.

I'm not arguing about fair use. The "loophole" I'm referring to is Wikimedia volunteers declaring this image public domain via a simple majority vote conducted amongst themselves, based on a weird and unprecedented technicality. And Techdirt have simply latched onto it like it's some sort of "cause" to fight for.

That would most likely be considered a "work for hire" scenario ...

Yes, I know. I was responding to some ridiculous rhetoric with real-world examples of said rhetoric. That should've been evident in context. I've repeated myself here at least 6 times about this already, and I'm tired, so very tired.

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I'm not arguing about fair use. The "loophole" I'm referring to is Wikimedia volunteers declaring this image public domain via a simple majority vote conducted amongst themselves, based on a weird and unprecedented technicality.

Ahh, I see why I was confused. What you are referring to as a "loophole" isn't any such thing, it's following the law as written. (Disclaimer: This is a minor pet peeve of mine - following the law as written is not "skirting the law" or "pushing the limits of the law" or "using a loophole" or any other such nonsense. It's following the law as written, nothing more and nothing less)

Also, it's not just Wikimedia declaring this work to be public domain, it's also quite a few respected people who are extremely knowledgeable in copyright law who are saying this.

And Techdirt have simply latched onto it like it's some sort of "cause" to fight for.

I disagree with this statement. This situation is very newsworthy and lands smack dab in the middle of Techdirt's wheelhouse. Much along the lines of the discussions that occur here concerning how the 1969 version of "Night of the Living Dead" is public domain because the distributor didn't affix a proper copyright notice on the film as was required at the time.

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malbee: it actually has yet to be determined that Mr Slater "lacks a copyright".

Since you are playing the part of pedant, then you must also admit that it has yet to be determined the Mssr. Slater actually has a copyright claim here. With no court ruling to say one way or the other, the state of Schrödinger's Monkey is officially undefined.

So I say bring on the lawsuit! If Mssr. Slater is so confident in his rights, then he should have no problem asserting them in court. If not, well that itself speaks volumes.

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I see my mistake. When you say "artist", you really mean "rights-holder", don't you? I'm pretty sure you don't give a rat's ass for "art" or "artistic expression." You think all that's involved here is royalties.

I suggest you have your employers go back to the old days and do it the way classical artists worked. Find a prince or pope or king or some other rich person and get them to sign a contract for the work, then create something. They (the patron) will have utter and complete control over the work (they needn't even admit to anyone that it exists), and they can save a lot of money doing without legal leeches like you trying to convince them of the utility of hairbrained schemes like this.

BTW, I used to be an artist until I discovered there's hardly any money in it, so I found a better way to make a living. Perhaps your client should consider doing the same. Just a bit of friendly advice.